1986 PLP 1669 (MLD)

S. Mushtaq Hussain for Appellant. Muhammad Sharif for Respondent. Date of hearing: 26th May, 1986. This Judgment will dispose of IInd Appeal No. 34 of 1983. Aulad Hussain against the Judgment, dated 12‑10‑1983, passed by VIIth Additional District Judge, Karachi, whereby the Additional District Judge, acting as the first appellate authority under the provisions the Repealed Ordinance, accepted the appeal filed by the respondent and set aside the order of dismissal of eviction application passed by VIth Rent Controller, Karachi. The respondent is owner and landlady of the house bearing No. 1148/4, Drigh Colony, Karachi, and the appellant is the tenant in respect of half portion of the said house at the monthly rental of Rs. 50. The respondent had filed eviction Application No. 2893/75 on the personal ground as well as on the ground of default. The Controller dismissed the eviction application on both the grounds, vide order, dated 25‑2‑1978. The grounds of personal requirement in respect of the half portion as well as the default for the period commencing from 1‑1‑1975 till the date of filing eviction application amounting to Rs. 350 were not accepted by the Controller. The order of dismissal of eviction application was challenged by the respondent before the 1st appellate authority (VII Additional District Judge, Karachi). The appellant supported the order of the Controller before the first appellate authority. The first appellate authority accepted the appeal only on the ground of personal requirement and rejected the same on the ground of default. I have heard the learned counsel for the parties. I have gone through the entire evidence recorded in the eviction application, with the assistance of the learned counsel appearing on either side and have also perused the impugned judgment and order passed by the 1st appellate authority and the Controller. Mr. Mushtaq Hussain contended that, the learned Additional District Judge has failed to comply with the requisitions of an appellate judgment mentioned on Order XLI of rule 31 of the Code of Civil Procedure. Mr. Muhammad Sharif, the learned counsel for the respondent has fairly and frankly conceded that the judgment of the learned Additional District Judge has failed to comply with the legal requirements. The provisions of Order XLI, rule 31, Code of Civil Procedure amendatory. The judgment of the first appellate Court has to set points for determination, record the decision thereon and give its own reasons for the said decision. The expression used throughout shall state. Looking to the plain language of the rule it cannot be said that failure to comply with these provisions is a mere irregularity. The Legislature has laid down these rules so that the second appellate Court should be in a position to find out the track traversed by the appellate Court. It cannot be run away from its onerous duties of recording the finding of fact and/or discussing the evidence. In appeal before the appellate authority procedure is governed by section 15(3) of the Repealed Ordinance. Subsection (3) is a complete code in itself. It is well‑settled legal position that this principles of C.P.C. are applicable. Strictly speaking, as one reads the judgment, it cannot be said to be a judgment of the first appellate authority, at all within the meaning of Order XLI, rule 31 of the Code of Civil Procedure otherwise these imperative provisions would be reduced to empty formalities. Therefore, the objection taken by Mr. Mushtaq Hussain, I think, is sound and must prevail. Mr. Mushtaq Hussain, learned Advocate for the appellant submitted that the first appeal be remanded to the Additional District Judge and the learned Additional District Judge, be directed to rehear the arguments and to record his finding by formulating the points for determination as required by Order XLI, rule 31, C.P.C., Mr. Muhammad Sharif, the learned counsel for the respondent submitted that the matter is pretty old otherwise this already protected litigation will have a further chequered career with the result of giving long rope to the tenant and no relief to the landlord in good time. As I peruse the record, there seems to be considerable force in this submission. Mr. Mushtaq fairly conceded that I can go through the evidence and decide this appeal on merits; I think the request is genuine. Turning to the merits of the case, in my view, the grounds given by the Rent Controller in his order for dismissing the eviction application of the respondent on the ground of personal requirement and default were not sound and cogent. The respondent in her eviction application stated that she required the said premises reasonably and in good faith for her own use and occupation and as well as for her children. The appellant filed written statement and denied contents of para. 3 of the eviction application and stated therein that "the appellant is living in well accommodative house and she filed this case with mala fide intention and as counter‑blast to Suit No. 1557 of 1975 which has been filed by the opponent for declaration and injunction because the opponent was being harassed to vacate premises or to increase the rent". Muhammad Islam the respondent entered in the witness‑box. He stated the total area of the house is 80 square yards. In one of the portion, the applicant is living with family and the other portion of the house is in occupation of the opponent. We got four children; in all we are six members of family. The portion in which we are living is one room and it is insufficient for our living purpose. I have asked the opponent to vacate the premises but the opponent did not vacate the same." The respondent's husband denied the suggestions that he was not living in the one portion. He also denied the suggestion that was let out on rent to Nasim. He also denied the suggestion that he was living with his family in House No. 1070/4, in the same area. As against the above evidence, the appellant stated in his deposition before the Controller that one other person in portion of the house is living namely Nazim Akhtar." He also stated that the respondent was living in the House No. 1090/4, Drigh Colony and tha house belongs to the respondent. He also stated that he filed suit against the respondent and she was served on the above address. It i pertinent to note that the respondent's husband appeared in the witness box but no question was put to him about the receiving of the notice at House No. 1070/4. In view of this matter no reliance can be place on such document. It is the duty of the appellant to take such plea i the written‑statement and then to suggest the respondent's husband when he appeared in witness‑box. In the instant case the respondent not confronted with such a document. It was averred in the eviction application that the respondent required the premises in question in good faith for her use and also for the use of her children. As against all the aforesaid evidence there is only the word of the appellant that the respondent was residing in House No. 1090/4. It is apparent that the averment in the eviction application about requirement of the respondent for her use and for the use of her children has been fully supported in her husband's deposition and nothing has been brought out in cross‑examination which could show that claim of personal requirement for herself and her children is to be false or is based on wrong statement. It is well‑settled legal position that the assertion of the landlady's husband on oath as to requirement of the premises in question for her personal requirement is to b accepted, if consistent with her averment in her eviction application and not shaken in cross‑examination or disproved in rebuttal. I am o the view that the respondent has established her and nothing has bee brought on record which could show that the eviction application was mala fide. The result is that the eviction application is accepted on the ground of personal requirement. The respondent in her eviction application stated that "the opponent is in arrears of rents, with effect from January, 1975 till the date and as such the arrears of rent comes to Rs. 350. He neither tendered nor paid the rent and committed the fault as usual". The appellant denied the contents and stated that "the difficulty arose some time in the month of April, 1975 when the husband asked the opponent to enhance the rent from Rs. 50 per month to Rs. 100 per month, but the opponent did not accede to his illegal demand. The opponent paid the rent and demanded receipt from the appellant's husband. Apprehending the bad intention after refusing to increase the rent. Therefore, the opponent has been depositing the monthly rent in Court regularly, and not a single penny is due from opponent". The husband and attorney of the respondent stated in his deposition recorded before the Controller that the appellant had paid rent for the months of December, 1974 and did not pay rent from January, 1975. He denied the suggestion in cross‑examination that the respondent had paid rent upto April, 1975. He also denied the suggestion he did not issue receipt. The appellant in his deposition stated that the respondent's attorney used to collect rent. He also stated that he started depositing rent in Court and he produced receipt Exh. 5/A. I have perused the receipt and the perusal thereof shows that it was issued on 16‑5‑1975. Section 15(2)(ii) of the Ordinance contemplated that the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and the landlady for payment of the rent, or in the absence of which agreement within six days after the rent has become due for payment. Once the tenant has committed default by not payment or tendering rent within the prescribed period he would be liable to bell) evicted notwithstanding subsequent payments of arrears of rent. The respondent averred in her eviction application that she had not received the rept for the disputed premises, the respondent had successfully discharged the burden of proof and the onus was shifted on the appellant. The Hon'ble Supreme Court laid down the following dictum in Allah Din v. Habib P L D 1982 S C 465. "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13(2)(i) of the Sind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non‑payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. The principle thus stated was held to apply to the case of a transferee for value who has paid his money in good. faith and without notice of the original contract under section 27(b), Specific Relief Act, 1877, in the case of Khairun Nisa v. Muhammad Ishaq P L D 1972 S C 25. Applying the principle to the facts of this case, it is clear to us that upon asserting in the evidence that he had not received the rent for the disputed period, the appellant had successfully discharged the burden of proof and the onus was shifted to the respondent. If, therefore, the evidence of the two parties consisting of oral assertions the appellant stating that he had not received the rent and the respondent testifying that he had paid the rent but no receipts were issued to him, the issue could only be decided on the ground that the tenant had failed to discharge the onus to prove the factum of payment. The approach as already observed, adopted by the learned First Appellate Court was, therefore, wholly erroneous and was liable to be upset in Second Appeal. The conclusion is that the appellant has successfully established that the respondent had committed default in the payment of rent and is liable to be evicted from the premises." The above dictum is applicable to the facts of the instant case. The conclusion is that the respondent has successfully established that the appellant had committed the default in payment of rent for the disputed period and was liable to be evicted from the premises in question. I have already held that the finding of the Controller is based on misreading of evidence and is also not supported by the evidence on record. I, therefore, dismiss this appeal and set aside the judgment of the first appellate authority and order of the Controller and grant eviction of the appellant on the ground of personal requirement as well as default. The appeal was dismissed by a short order and the above are the same. The appellant is directed to vacate the premises in question within six months from date of Judgment subject to continue to deposit rent in terms of Controller's order. However, in case of default the respondent is entitled to file execution application before the expiry of the above period the writ 1 of possession will be issued without any notice to the appellant. H. B. T. Appeal dismissed.